U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alberto O.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021000005 Agency No. HS-TSA-01698-2017 DECISION On July 14, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 30, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND During the relevant time, Complainant worked as a Transportation Security Officer (TSO) at the Agency’s Northwest Arkansas Regional Airport in Bentonville, Arkansas. In October 2016, Complainant applied for a Supervisory Transportation Security Officer (STSO) position. The requirements of this position included one year of specialized experience in the position of a TSO and six months of experience as a team leader, work leader, or supervisor in any work environment. Id. at 60, 102, 118. The job announcement specified that all self- certification questions would be cross referenced with an applicant’s resume. Id. at 101. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021000005 2 Program Analyst averred that Complainant’s “resume did not provide or demonstrate the required leadership as per the announcement” and he was rated as not qualified, specialized experience. Supplemental ROI at 9-11. As such, Complainant was not on the certification list for position; and the recommending and selecting officials did not consider him for the position because he was not referred for consideration. Id. at 89, 103. Neither the referring nor the selecting official was involved in creating the certification list. Id. at 90. Rather, the certification list was created by Program Analyst, who was in a different state than Complainant, who had no working relationship with Complainant. Supplemental ROI at 9. The position, ultimately, was offered to two other applicants. ROI at 61. Complainant believed that he was qualified for the position. He asserted that he had formal leadership and management training from his time in the Air Force Reserve Officer Training Corp and that he had several years of supervisory and administrative experience. Id. at 13. His resume enumerated leadership experience between October 2001 and October 2003. He specified that he supervised graduate teams of over 200 airmen. Id. at 139. Complainant responded in the certification questions that he had at least one year of experience as a TSO and that he had six months as a team leader, work leader, or supervisor. Id. at 134. Complainant also made efforts to obtain leadership experience at the Agency but was unable to do so prior to the application in question. In December 2015, Assistant Federal Security Director (Assistant Director) sent an email to relevant employees that there had been concerns that certain people were being groomed for supervisory positions. He denied that anyone was groomed for the position, but concurred that there was not a fair, impartial, and transparent mechanism by which to afford people details. He requested that all interested parties provide him their information, if they were interested in participating in a detail as STSO or Lead TSO (LTSO). Id. at 84-5. Complainant responded to Assistant Director’s email but was not selected for such a detail prior to his application for the position relevant to this claim. Id. at 63. Both of the people selected for the position were male. Id. at 464. Selectee 1 was over the age of 40 and Selectee 2 was under the age 40. Id. at 61. Complainant alleges that another individual, Candidate, not selected for the posting in question, was subsequently provided an STSO detail by management and later promoted to the position on a permanent basis. Id. at 62. Complainant further asserts that Candidate was groomed for the position through a non-competitive detail appointment. Assistant Director counters that this was a competitive temporary position that anyone, including Complainant, for which could have applied. AFSD further asserted that the Candidate was the second choice for the detail, after the first choice, a male over 40, declined. Id. at 91. On September 7, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (44), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was not selected for a position as STSO under certificate number 16198248. 2021000005 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but Complainant subsequently withdrew his case in favor of a final agency decision (FAD). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). On July 12, 2019, the Agency’s EEO Office determined that a supplemental investigation was required to determine the reason that Complainant was not listed on the list of eligible individuals. Supplemental ROI at 5. The supplemental investigation was to be completed by September 1, 2019. The letter requesting the supplemental investigation specified that, if the timeframe for a supplemental investigation expired without a completed investigation, Complainant had the right to request and immediate FAD based upon the evidence of record at the time the request was made. Id. at 7. However, the Agency did not assign an investigator until December 2019. That same month, Complainant was afforded the opportunity to rebut the statements received as part of the supplemental investigation but did not do so. Id. at 30-31, 34. On January 10, 2020, after the conclusion of the supplemental investigation, Complainant asserted that the supplemental investigation had not been conducted in a timely manner, he did not grant an extension, and he demanded a FAD based, solely, upon the evidence of record exclusive of the supplemental investigation conducted in December 2019. Id. at 30. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The immediate appeal followed. CONTENTIONS ON APPEAL Complainant contends, via his representative, that the Agency did not conduct the ordered supplemental investigation in a timely manner. As such, only the information obtained prior to the supplemental investigation should be considered. A fair and reasonable reading of Complainant’s assertion is that he is requesting sanction of negative inference and exclusion of evidence due to the untimeliness of the Agency’s supplemental investigation into his claim. The Agency argues that Complainant has not met his burden in proving that the Agency acted based upon his protected class when he was not selected for the STSO position. The Agency also requested an extension of time to provide a brief in support of its position. However, as its motion included a brief in support of its position, and a decision at this time would not prejudice the Agency, the Commission will proceed with a decision on the merits. 2021000005 4 ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Complainant’s Request for Sanctions On appeal, Complainant requests that the Commission issue a sanction against the Agency regarding the processing of the supplemental investigation. Pursuant to 29 C.F.R. § 1614.108(c)(3), when an Agency is untimely with requested documents, records, or witnesses, the Commission may draw and adverse inference, exclude the evidence, or take other action as appropriate, the regulations are clear that these actions are permissible and not required. 29 C.F.R. § 1614.108(c)(3) (emphasis added). Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affs., EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). In the current case, the Agency did not assign an investigator for the supplemental investigation for over three months after the deadline for the supplemental investigation. However, once the matter was assigned, the supplemental investigation was concluded within the same month that it was assigned. We note that Complainant only objected to timeliness of the supplemental investigation and not the quality of it. 2021000005 5 The Agency did not conclude the supplemental investigation until January 10, 2020, three months after its established deadline of September 1, 2019. However, Complainant did not present any evidence of prejudicial effect as a consequence of this delay. As such, the Commission declines to issue sanction against the Agency at this time. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). The Commission will assume, arguendo, that Complainant established a prima facie case of discrimination. In the instant case, the Agency has articulated a legitimate, non-discriminatory reason for its actions, human resources did not refer Complainant to the selecting official. The selecting official, therefore, had no opportunity to select Complainant for the position in question. Instead, Selectees 1 and 2 were chosen for the position in question. The burden now shifts to Complainant to persuade the Commission by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr., 509 U.S. at 502. Upon review, we find that Complainant failed to establish that the Agency's articulated reason for Complainant's non-selection was pretext for discrimination. Complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256. When the issue is non-selection, evidence of pretext can take the form of a showing that Complainant's qualifications were plainly superior to those of the Selectee. Hung P. v. Dep't of Veteran Affs., EEOC Appeal No. 0120141721 (Dec. 3, 2015). The Supreme Court has addressed the question of comparative qualifications as evidence of pretext in a non-selection case and held that the differences in qualifications must be “significant.” See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Complainant argues that other people were given preferential treatment for details and temporary STSO and LTSO positions, which afforded Selectee 1 and 2 supervisory experience within the TSO position. The evidence, however, does not bear out that this was due to membership in a protected class. Rather, it was based upon a rotation, shift, or business need due to prior experience of the person selected. 2021000005 6 The Commission has previously found that an Agency has the discretion to choose among candidates whose qualifications are relatively equal as long as the decision is not premised on an unlawful factor. Devance-Silas v. U.S. Postal Serv., EEOC Appeal No. 0120110338 (Mar. 23, 2011), citing Burdine, 450 U.S. at 248, 252-259; Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin Coll., 555 F.2d 1057, 1061 (6th Cir. 1981). Selection based upon prior experience or assigned shift is not discrimination based upon a protected class, and the Agency has discretion to use this as a lawful selection factor for details or temporary assignments. The Commission concedes that, despite the Agency’s assertion, Complainant’s resume did indicate that he had prior leadership experience. However, the HR determination that he was not qualified was made by an individual who had had no working relationship with Complainant. Complainant has provided no evidence that this omission was due to discrimination based on his protected classes, as opposed to a mistake or oversight on the part of the Agency. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus). Although Complainant has alleged that the Agency acted discriminatorily, the record simply does not provide any evidence that the selection was motivated by his sex, age, or prior EEO activity. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Burdine, 450 U.S. at 249. Therefore, we conclude that Complainant failed to establish his claim of discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision and its finding that there was no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2021000005 7 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. 2021000005 8 You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 22, 2022 Date